Primecredit Ltd v. Yeung Chun Pang Barry and Another
Read the full judgment text of HCMP 2103/2015 on BabelCite. This Court of First Instance judgment was delivered on 10 February 2017 before Anthony Chan J.
Civil proceedings – stay of execution pending appeal – Charging Order Absolute in HCA 3549/2003 – Unit D on 28th Floor of Block 5, Richland Gardens, Kowloon (New Kowloon Inland Lot No. 5928) – elderly occupier residing at the property for over 30 years – whether stay of execution of Order dated 9 December 2016 should be granted – Order 31, Order 50 rule 9A(1) and Order 88 rule 5A of the Rules of the High Court (Cap 4A) – Plaintiff (Primecredit Limited) sought execution of order obtained in 2003 action – 2nd Defendant applied for stay pending appeal – Plaintiff contended merits of appeal were weak and pointed to unsatisfactory features in Defendants' evidence – Court granted stay on 2nd Defendant's undertaking to prosecute appeal with due diligence – real risk of property being sold before appeal would render appeal nugatory and cause serious injustice to elderly 2nd Defendant – deficiencies in Defendants' evidence did not outweigh concern of potential injustice – 1st Defendant did not appear and was not represented.
Legal issues: Stay of execution pending appeal
Outcome: Stay of execution of the Order dated 9 December 2016 granted, conditional on the 2nd Defendant's undertaking to prosecute the appeal with due diligence.
Cited by 2 cases
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HCMP 2103/2015 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF FIRST INSTANCE MISCELLANEOUS PROCEEDINGS NO. 2103 OF 2015 ______________________
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______________ D E C I S I O N ______________ 1.I grant a stay of execution of the Order dated 9 December 2016. Although I am unable to see much force in respect of the merits of the appeal in question, it is undisputed that the 2nd Defendant is an elderly lady who has been residing at the Property for over 30 years. There is certainly a real risk that the Property may be sold before the appeal is heard. This may render the appeal nugatory, and constitute serious injustice to the 2nd Defendant. 2.Mr Tsang, appearing for the Plaintiff, has pointed out various unsatisfactory features in the evidence put before the court by the Defendants in support of this application. However, I do not believe that they outweigh the concern of potential injustice to the 2nd Defendant. 3.In the premises, it is right to accede to the stay application upon the undertaking by the 2nd Defendant to prosecute her appeal with due diligence.
Mr Alvin Tsang, instructed by J Chan & Lai, for the Plaintiff The 1st Defendant was not represented and did not appear Mr Anthony P W Cheung and Mr Marco Tse, instructed by T K Tsui & Co, for the 2nd Defendant | ||||||||||||||||||||||||||
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